Gerald Ross PIZZUTO, Jr., Petitioner-Appellant, v. A.J. ARAVE, Warden, Respondent-Appellee, 280 F.3d 949

OPINION RYMER, Circuit Judge. Idaho state prisoner Gerald Ross Pizzu-to, Jr. appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition, in which he challenges his 1986 conviction and sentence for the first degree murders of Berta Herndon and her nephew, Delbert Herndon. Pizzuto was sentenced to death. Because Pizzuto filed his habeas petition before the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted, AEDPA does not apply to the merits of his appeal. However, on April 26, 2000, the Supreme Court held in Slack v.

McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), that the procedural requirements of AEDPA govern any habeas petitioner’s appeal commenced after the statute’s effective date, April 24, 1996, regardless of when the petition was filed. Consequently, Pizzuto needs a certificate of appealability.(COA) rather than a certificate of probable cause (CPC) for this court to have jurisdiction.

As Pizzuto could not have known that a COA rather than a CPC was required, we treat “the petitioner’s notice of appeal as a request for a COA on the issues raised in the briefs, and we grant a COA on those issues as to which the petitioner has made the requisite ‘substantial showing of the denial of a constitutional right.’ ” Morris v. Woodford, 229 F.3d 775, 779 (9th Cir.2000) (quoting Schell v. Witek, 218 F.3d 1017, 1021 n. 4 (9th Cir.2000)). We conclude that Pizzuto has made such a showing and so grant a COA on the issues raised in his briefs. On the merits, we affirm.

I On July 25, 1985, Berta Herndon and her adult nephew Delbert Herndon were robbed and murdered and their property was stolen while they were camping in the Ruby Meadows area, a remote campsite near McCall; Idaho. The police discovered their bodies in shallow graves that had been dug near their cabin. The victims’ hands were bound behind their backs with shoelaces and heavy wire, and Berta’s and Delbert’s jeans were pulled below their knees. The murders occurred in the Herndon cabin.

Both the Idaho Supreme Court and the district court’s order denying Pizzuto’s petition for writ of habeas corpus describe the facts in detail. In sum, testimony at trial showed that Pizzuto, James Rice, and William and Lene Odom knew each other from Orland, California. They (along with the Odoms’ two children) traveled to Idaho in the Odoms’ vehicle, and were camping together that day in a cabin in the Ruby Meadows area. William Odom and Pizzuto discussed robbing two fishermen, Stephen Crawford and Jack Roberts. While they were at the pond, the Herndons drove by in their pickup truck.

Pizzuto and Odom abandoned their plan to rob the fishermen, and returned to their cabin. Shortly thereafter, Pizzuto left the others and walked off in the direction the Herndons had driven. He picked up a .22 caliber rifle and said he was going “hunting.” Twenty to thirty minutes later, Rice and Odom drove up the road in Odom’s truck looking for Pizzuto. As they drove past the Herndon cabin, they saw Pizzuto standing in the doorway, holding a revolver.

Pizzuto came up to Rice and Odom and told them to “give me half an hour and then come back up.” Rice and Odom drove back to their cabin, left their truck, and walked back to the Herndon cabin. Approaching the Herndon cabin, Rice and Odom heard “bashing hollow sounds” like a watermelon being thumped. Pizzuto emerged with a hammer, the rifle, a revolver, and a pair of cowboy boots. He also had a “wad of hundred dollar bills” that he gave to Odom; Rice took the rifle.

Pizzuto told them that he had “put those people to sleep, permanently.” He also said that he told the Herndons that he was a “highwayman” and that, when Delbert Herndon didn’t believe him, Pizzuto put a gun up to Delbert’s face, “made him drop his pants and crawl around the cabin,” and asked Delbert; “Does this look like a cannon from where you are standing at?” Rice then heard some snoring sounds coming from the cabin and went inside. There, he found Berta and Delbert lying on the ground, with blood on their heads. Both bodies were still, except for Delbert Herndon’s legs which were shaking.

Rice shot Delbert Herndon in the head because he “didn’t want him to suffer.” Pizzuto, Rice, and Odom returned to their camp, divided up the money Pizzuto had stolen from the Herndons, and gave Lene Odom a leftover $100 bill. Pizzuto and Odom then went back to the Herndon cabin to bury the bodies. At the cabin, Odom saw that the Herndons’ hands were tied behind their backs. They buried Berta Herndon in a hole that Rice had previously dug. Pizzuto and Odom got Rice to help them bury Delbert Herndon; they threw his body in a shallow ditch and covered it with dirt.

After they returned to their cabin, Piz-zuto, the Odoms, and Rice sorted through the Herndons’ possessions and took what they wanted. They left Ruby Meadows with Odom driving his truck and Pizzuto and Rice riding in the Herndon truck. They camped that evening at a nearby hot springs; the next morning they parked the Herndon truck in a wooded area, drove into Cascade and checked into a motel. They stayed there for several days and, while there, took pictures of each other with a camera stolen from the Herndons. Rice then took a bus to Orland, where he reported the murders to the police.

On July 31, Pizzuto met Roger Bacon in Gold Fork Hot Springs. Bacon and Pizzu-to decided to go fishing and hunting. As they walked toward a small stream, Pizzu-to pulled out a gun and said “he was a highwayman.” Pizzuto tied Bacon’s hands behind his head with shoelaces, took money from him, and left him tied to a tree. Bacon eventually freed himself. Sometime in early August Pizzuto visited his sister, Angelinna Pizzuto, in Great Falls, Montana.

Pizzuto arrived with cowboy boots, a revolver, and a two-tone gold wedding band in his possession, all of which were subsequently identified as belonging to Delbert Herndon. Pizzuto told her that he, was a “highwayman” and that he had robbed and murdered a man and a woman (with the man’s gun, which he had) after he had tied them to some trees. Later, Pizzuto told his sister that he had not killed the man but Rice had; later still, that Rice and Odom had killed the people and he, Pizzuto, had freaked out, had a seizure, and tied a guy to a tree.

Autopsies revealed that Berta Herndon and Delbert Herndon each suffered two fatal blows to the head, consistent with hammer blows, and in addition that Delbert Herndon had been shot between the eyes which would also be fatal. The pathologist was unable to determine which occurred first. Delbert Herndon’s wrists had been bound with a shoe lace and a piece of wire, and Berta Herndon’s hands and wrists were tied behind her back using a shoe lace which was wrapped several times around her right thumb.

Pizzuto, Rice and the Odoms were charged with the Herndon murders; Rice and Odom pled guilty to lesser offenses and charges against Lene Odom were dismissed in exchange for their agreeing to testify at Pizzuto’s trial. Following a jury trial Pizzuto was convicted of two counts of murder in the first degree, two counts of felony murder, one count of robbery, and one count of grand theft on March 27, 1986. The trial judge, Hon. George C. Reinhardt, ordered that a presentence report be completed and that psychiatric examinations be conducted by Dr. Michael Emery and Dr. Roger White. Pizzuto declined to meet with Dr.

White on advice of counsel. During the sentencing hearing before Judge Reinhardt, convened May 21, 1986, Pizzuto called his two sisters, Toni and Angelinna Pizzuto, and his aunt, Kibby Winslow, who described the abuse he (and his sisters) suffered in childhood; his former probation officer from Great Falls, Montana, Jerome Skiba, who gave a positive report on Pizzuto’s adjustment; and Dr. Emery. Pizzuto did not testify but made an unsworn statement to the court.

The state presented eight witnesses, including Pizzuto’s former wife, 1822 Pamela Relken, who testified that Pizzuto could be “very violent, punishing” in that he had pushed her head into a wall, drowned her cats and their puppy (who Pizzuto then hung from the shower stall), pushed her down-the stairs when she was six-and-a-half months pregnant, pointed a gun at her head and played roulette, described himself “as a fourth generation A1 Capone,” and threatehed her with death in a letter written after he had been arrested on rape charges.

It also called Michael Berro, the presentence investigator on Piz-zuto’s Michigan rape conviction, who testified that Pizzuto was “one of two people who have ever threatened [his] life where [he] believed it”; Paul Blumbaum, who worked at Pizzuto’s jail and testified that Pizzuto claimed to have put snakes in mailboxes, said that he could “get anything out of anybody he wanted by the technique of tying them tightly around the ankles,” and threatened his jailers by saying that he was going to bring in the Mafia; Annette Jones, who authored the presentence report for the Herndon case; Berta Hern-don’s widower; and Dr.

Emery. On May 23, 1986 Judge Reinhardt sentenced Pizzuto to a fourteen-year fixed term with no possibility of parole for grand theft and a fixed life term for robbery. On the murder charges, the judge found that the mitigating circumstances did not outweigh any one of five statutory aggravating circumstances as would make imposition of the death penalty unjust. Accordingly, he sentenced Pizzuto to death for the murders of Delbert Herndon and Berta Herndon. Pizzuto filed a petition for post-conviction relief. After holding an evidentiary hearing, the state district court dismissed the petition on April 15, 1988.

Pizzuto appealed his convictions and denial of the motion for post-conviction relief to the Idaho Supreme Court, which affirmed. State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991) (Pizzuto I). On June 22, 1992 Pizzuto filed a motion in the federal district court seeking appointment of counsel and a stay of execution, which was granted. He filed a petition for writ of habeas corpus on September 18, 1992, and a first amended petition on January 29, 1993. Meanwhile, Pizzuto filed a second petition for post-conviction relief and moved to disqualify the trial judge.

The state district court held that the claims were ones of which Pizzuto had knowledge that should have been brought in his first post-conviction petition, and denied the motion to disqualify as moot. It dismissed the second petition under Idaho Code § 19-2719, and the Idaho Supreme Court again affirmed. Pizzuto v. State, 127 Idaho 469, 903 P.2d 58 (1995) (Pizzuto II). The federal district court denied Pizzu-to’s habeas petition April 7, 1997. Pizzuto moved to alter or amend the judgment, which the court also denied on June 9. The district court granted a CPC on July 10.

II Pizzuto contends that his trial counsel, Nick Chenoweth and Scott Wayman, were ineffective at sentencing in a number of respects. To prevail under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Pizzuto must demonstrate that his “counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052.

Performance is measured “as of the time of counsel’s conduct,” id. at 690, 104 S.Ct. 2052, and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)).

Because Pizzuto must prove both deficient performance and prejudice, we “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies_If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Id. at 697, 104 S.Ct. 2052. A petitioner must “affirmatively prove prejudice.” Id. at 693, 104 S.Ct. 2052. This requires showing more than the possibility that he was prejudiced by counsels’ errors.

Rather, he must demonstrate that the errors actually prejudiced him. See id. Under Strickland, actual prejudice occurs where “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

Whether an error actually prejudiced a defendant is weighed against the “totality of the evidence before the judge or jury.” Id. at 695, 104 S.Ct. 2052. “[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id. at 696, 104 S.Ct. 2052; see also Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir.2001) (holding that “ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the government’s case”), 798 F.2d 374, 376 (9th Cir.1986) (quoting Eggleston v. United States).

A Contesting Aggravating Circumstances Pizzuto argues that counsel made no effort to contest the aggravating circumstances alleged by the state either through evidence or argument.

In particular, he submits that counsel should have pointed out the weakness in the theory that Pizzu-to alone tied up the Herndons; should have emphasized inconsistencies between the testimony of Rice and Odom about whether Rice said he wanted to have sex with Berta Herndon, whether Odom made Rice “dance” by pointing a gun at his feet, whether Rice volunteered to dig the graves, and whether Odom suggested that they jump a gold miner’s claim before the robbery and murder took place; and should have argued that it was the presence of Rice and Odom which transformed the Herndon robbery into murder because Pizzuto by himself only robbed Bacon but did not harm him.

Individually or cumulatively, we do not see how these arguments would have made a difference. Under Idaho law at the time of Pizzuto’s sentencing, the judge alone determines whether at least one of ten statutory aggravating circumstances has been established beyond a reasonable doubt. Idaho Code § 19-2515. Once an aggravating circumstance is found true, the court “shall” sentence the defendant to death “unless the court finds that mitigating circumstances which may be presented outweigh the gravity of any aggravating circumstance found and make the imposition of death unjust.” Id. at § 19-2515(c).

Both parties have the right at sentencing to present “all relevant evidence in aggravation and mitigation,” but “[e]vidence admitted at trial shall be considered and need not be repeated at the sentencing hearing.” Id. at § 19-2515(d). Here, the state district judge who sentenced Pizzuto also presided over the guilt phase, and made it clear that evidence adduced at trial would be considered at sentencing.

His findings specifically note that he had considered “all of the evidence admitted during the trial.... ” Therefore, counsels’ effectiveness cannot be measured solely by what they did or didn’t do at the sentencing phase. See Woratzeck v. Stewart, 97 F.3d 329, 336-37 (9th Cir.1996) (no ineffective assistance of counsel for failing to present evidence when evidence was already in the record); Williams v. Calderon, 52 F.3d 1465, 1471 (9th Cir.1995) (prejudice not shown where trial counsel introduced no mitigating evidence at penalty phase but had presented that evidence during the guilt phase).

Every weakness or discrepancy that Pizzuto now says should have been cited and argued at sentencing was already before the court. At trial, counsel impeached Rice and Odom with their prior convictions, lesser sentences, and drinking and drug use; they portrayed Lene Odom as a cold hearted criminal who “rifled” through the Herndons’ belongings, demanded her share of the loot and escaped prosecution in exchange for her testimony.

Counsel meticulously cross-examined Rice, Odom and Lene Odom and argued that they were liars who had “concoct[ed] a story” but “forgot the details.” In closing argument, Chenoweth highlighted inconsistencies in their testimony by noting that Lene Odom said she and Odom had strips of beef and fries in McCall and that no one else ate, while Rice testified that they bought a dozen hamburgers but that he couldn’t eat them; that Lene Odom claimed her husband never discussed the murders, while Odom stated he told her that people had been killed; that Rice saw Pizzuto exit the Herndon cabin wearing cowboy boots, while Odom saw him carrying them; that Rice saw Pizzuto carrying a claw hammer, while Odom saw a ball-peen one; that Rice heard four “thunks” from the Herndon cabin, while Odom heard two; that Rice claimed that the hole he dug was only for panning gold and rubies, while Odom maintained that Rice had volunteered to dig the hole as a grave; that Rice denied taking $58 out of Berta Hern-don’s purse, while Odom said he did; that Rice denied wanting to have sex with Berta Herndon, while Odom said he did; that Rice claimed that Delbert Herndon was lying on the ground and that he was standing at Delbert’s feet when he fired the rifle, while forensic evidence demonstrated that Delbert was either sitting or standing if Rice was where he said he was; that Rice never saw the Herndons’ hands bound, while Odom said they were; that Rice claimed to have marked the graves for the police, while the police found no such markers; and that Rice testified that Lene Odom asked for her share of the money, while she and Odom claimed it was Pizzuto’s idea to give her the extra $100.

Chenoweth also emphasized that Odom pointed a pistol at Rice’s feet and made him dance, and that it was Odom who wanted to jump claims and hide the bodies. It would not have altered the outcome for counsel to have argued more forcefully that the difference between the Bacon robbery and the Herndon murders was that Rice and Odom were not present during the Bacon robbery. Neither Rice nor Odom was present inside the cabin when Pizzuto struck the Herndons’ heads with a hammer.

Further, Pizzuto called himself a highwayman when he robbed and tied up Bacon, told Rice and Odom that he had killed the Herndons after he had identified himself as one, and bragged to his sister about being a highwayman as well as the slaying. By the same token, we cannot see where greater focus on the assumption that Piz-zuto alone tied up the Herndons would have gotten him. It is countersensical to suppose that the victims’ hands or feet were tied 'together after they were killed.

Pizzuto told his sister about tying up victims in Idaho, and he told a lieutenant with the Idaho-County Sheriffs office that he could “get anything out of anybody he wanted by' tying them tightly about the ankles he had tied'up Bacon, and Odom said that the Herndons were tied up when he first saw them — which was after their heads were thumped.

Further, Judge Reinhardt found five statutory aggravating circumstances beyond a reasonable doubt: (1) at the time Pizzuto murdered Delbert Herndon, .he also murdered Berta Herndon; (2) the murders were especially heinous, atrocious, cruel and manifested exceptional depravity; (3) by the murders and circumstances surrounding their commission, Pizzuto exhibited utter disregard for human life; (4) the murders were accompanied with the specific intent to cause the two deaths; and (5) by prior conduct and by conduct in the murders in this case, Pizzuto had exhibited a propensity to commit murder which will probably constitute a continuing threat to society.

The state district court also found “beyond a reasonable doubt that the mitigating circumstances which were presented do not outweigh any one of the Statutory Aggravating Circumstances listed . above as would make the imposition of the death penalty unjust.” Thus, to establish prejudice Pizzuto must show that but for his counsel’s deficient .performance the trial court would not have found any one of the statutory aggravating circumstances. Cf. Zant v.

Stephens, 462 U.S. 862, 886-88, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (reimposing death sentence where only one of three aggravating circumstances had been held to be invalid); Hoffman v. Arave, 236 F.3d 523, 542 (9th Cir.2001), cert. denied, — U.S. -, 122 S.Ct. 323, (2001); see also Beam v. Paskett, 3 F.3d 1301, 1309 (9th Cir.1993) (as amended), overruled on other grounds, Lambright v. Stewart, 191 F.3d 1181, 1185 (9th Cir.1999).

However, he does not (and we believe, cannot) show how curing any of these claimed deficiencies would have avoided Judge Reinhardt’s finding that “[a]t the time the Defendant murdered Del Dean Herndon, he also murdered Berta Louise Herndon.” Pizzuto suggests that it is unclear whether he committed two murders or one because the instructions permitted him to be found guilty as either a principal or as an accomplice. But this would have no effect on the aggravating circumstance codified at Idaho Code § 19-2515(g)(2), which does not require the defendant to be the sole killer. See State v.

Lankford, 113 Idaho 688, 747 P.2d 710, 730-31 (1987) (trial court found aggravating circumstance (g)(2) where co-defendant played a greater role in the murders), overruled on other grounds, Lankford v. Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991). In any event, there was evidence from both Rice and Odom that Pizzuto was in the cabin when the thumps were heard and that this was after Pizzuto had come out of the cabin and re-entered it. They also agreed that Rice shot Delbert Hern-don after the hammer blows had been delivered.

And the pathologist opined that the blunt instrument blows to the back of Delbert Herndon’s head were sufficient to cause his death. Thus, even had defense counsel pointed out the testimony again, and again made the arguments that Pizzu-to now posits, there is not a reasonable probability it would have altered the finding that Pizzuto killed Berta Herndon when he murdered Delbert Herndon. Finally, Pizzuto relies on Conde v. Henry, 198 F.3d 734 (9th Cir.1999), and Cone v.

Bell, 243 F.3d 961 (6th Cir.2001), to argue that counsels’ failure to contest or argue the aggravating factors was a complete breakdown in the adversary system requiring relief without regard to whether he has demonstrated actual prejudice. In an appropriate case, Strickland’s prejudice prong may be presumed, United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), but this would only occur when “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Id. at 659, 104 S.Ct. 2039.

Here, counsel contested the state’s evidence at trial, and introduced mitigating evidence at sentencing; by no means did they entirely fail to engage the prosecution. Neither Conde nor Cone suggests otherwise, as there was no mitigating evidence and no final argument in Cone, and no argument was-allowed on the theory of defense in Conde. Thus, Pizzuto must show actual prejudice and, we conclude, he has failed to do so with respect to contesting the aggravating circumstances.

B Arguing Relative Culpability Pizzuto asserts that counsel did not marshal any of the evidence from trial showing that Rice and Odom had unsavory backgrounds and did not present additional evidence suggesting that they were unre-morseful liars: a jail officer’s report that Odom has “no remorse for what happened to the Herndons and feels he has beaten the system”; testimony that Odom bragged that, in California, “nares who snitched were made to dig their own graves”; and a polygraph showing that Rice lied when he denied digging a grave for the Herndons, said that he marked the Herndon graves so the police could locate them, and claimed that he did not know the Herndons would be hurt when Pizzuto went to their cabin with the rifle.

Relative culpability can be a mitigating factor at sentencing, Rupe v. Wood, 93 F.3d 1434, 1441 (9th Cir.1996), and the Eighth Amendment requires that the sentencing judge or jury be permitted to give effect to all mitigating evidence presented by the defendant. “Failure to present mitigating evidence at the penalty phase of a capital case constitutes ineffective assistance of counsel.” Bean v. Calderon, 163 F.3d 1073, 1079 (9th Cir.1998). However, inconsistencies between testimony given by Rice and Odom, and inconsistencies between what each said at trial and before, were brought out in the guilt phase.

They were cross-examined about their criminal history as well as their plea negotiations for the Herndon murders. Chenoweth argued at sentencing that despite the jury’s verdict, there should still remain “some doubt as to the roles of these people in this grizzly event that took place at Ruby Meadows....” In-these circumstances we cannot say that counsel was ineffective. Williams, 52 F.3d at 1471. But even if counsel should have offered or argued the jail officer’s report, the testimony about Odom’s bragging, and Rice’s polygraph, the evidence was cumulative and therefore Pizzuto was not prejudiced. Babbitt v.

Calderon, 151 F.3d 1170 (9th Cir.1998), cert. denied, 525 U.S. 1159, 119 S.Ct. 1068, 143 L.Ed.2d 72 (1999) (no prejudice where counsel failed to present cumulative mitigating evidence). There was evidence as well as argument that Odom was the leader of the group and the mastermind behind the robberies and murders.

Aside from the polygraph, there was evidence before the court that Rice had volunteered to dig the grave and that the hole was too far from the river to be useful for panning; that the police never found any of the markers Rice claimed to have placed by the Herndon graves; and that Rice played a greater role in the murders than he claimed. When measured against the state’s overwhelming aggravating evidence, there is no probability that additional evidence of a similar sort would have altered the outcome. Strickland, 466 U.S. at 696, 104 S.Ct. 2052; Bonin v. Calderon, 59 F.3d 815, 836 (9th Cir.1996).

C Independent Psychological Experts Pizzuto argues that trial counsel never consulted an independent psychological expert (one reporting only to the defense) and failed adequately to prepare Dr. Emery, who had been chosen by the court but whom the ■ defense called to testify at the sentencing hearing.

In Pizzuto’s view, the sentencing court found thirteen aggravating factors based directly on Emery’s conclusion that Pizzuto would always be a danger to others whether in or out of prison, whereas evidence was available that Pizzuto could be housed and function safely in a prison setting if administered proper drugs. Pizzuto maintains that defense counsel could not prevent Emery’s harmful conclusions, from being introduced against him because they had failed to request an independent expert.

Further, Pizzuto contends that he was sentenced without the court being informed of his history of head injuries and seizures, or receiving an expert opinion that his behavior could be accounted for by organic brain syndrome rather than an anti-social personality alone. We conclude that Pizzuto has not shown that counsel failed to consult with an independent expert or to request one, but regardless, he was not prejudiced by counsels’ efforts or preparation of Emery because the post-conviction evidence he has produced does not undermine our confidence in the sentence. i Pizzuto was examined before trial by Dr.

Sarah Werner, a specialist in neurology. In an October 17, 1985 “History & Physical” Werner recites that Pizzuto had been followed by Dr. Greenwood, a general practitioner, and had reported several seizure episodes in 1985.

Her impression was that Pizzuto’s history of episodes of loss of consciousness heralded by an abnormal unpleasant smell was consistent with temporal lobe origin seizure, which he likely had in the past, but that the variability and unusually rapid clearing once out of medical observation, and the timing of the symptomatology, of the present episodes strongly suggest that they were a “pseudo seizure.” Werner recommended that Pizzuto be continued on Tegetrol and Phenobarbital. Based on Pizzuto’s behavior in the Idaho County Jail and the Lewis County Jail and on the confidential reports received from Dr.

Werner and Dr. Greenwood, defense counsel moved on December 5, 1985 for a determination of Pizzuto’s fitness to proceed to trial. The court granted this motion and appointed Dr. Roger White, a psychiatrist. White’s report to the court was dated January 6, 1986 and indicated that Pizzuto was cooperative, alert and of average intelligence, without evidence of mental illness, and competent to stand trial. Pizzuto also saw Dr. Emery for a psychological evaluation before trial.

In his report to the court of January 23, 1986, Emery opined that Pizzuto had cognitive limitations, especially in his ability to anticipate the consequences of his behavior and the effects of his behavior on others; showed little ability to mediate emotions or tolerate ambiguity; and was preoccupied with violence and confrontation which probably reflected the victim role in which he found himself during his childhood.

Emery, too, concluded that Pizzuto understood the nature of the proceedings and was both capable of assisting in his own defense and had the capacity to enter into a state of mind which could .be an element of the offenses for which he was charged. After the guilt phase and before sentencing, Judge Reinhardt observed that Pizzuto’s mental condition would be a significant factor at sentencing and again appointed Emery to evaluate Pizzuto.

Emery’s April 24, 1986 report to the court indicates that his diagnosis of Pizzuto’s condition was the same as before — not a mental illness in the sense of a thought or mood disorder that might be amenable to treatment with medication, but a personality disorder or set of behavioral patterns including a limited capacity to anticipate the consequences of his behavior, to appreciate his behavior’s effect on others, to mediate his emotions, to tolerate ambiguity, and to understand and accept responsibility.

Emery also noted that he could not rule out the possibility that-Pizzuto might cause harm to others, and that “[t]he prognosis for rehabilitation is statistically not good, but also not impossible.” Emery was called to testify at the sentencing hearing by the defense, and in rebuttal, by the prosecution. In addition to interviewing Pizzuto a second time, Emery interviewed Pizzuto’s sisters and his aunt and listened to the mitigation evidence that Pizzuto presented. He testified that Pizzuto had a perception of the world as being populated by people who have the choice of being victimizers or victims.

He explained how Pizzuto dwelt on the abuse he suffered at the hands of his stepfather and his need to demonstrate his own powers in competition with others in order to justify himself. Emery also stated that if he were going to try to engineer a childhood environment to create a predatory violent individual as an adult, he couldn’t do better than Pizzuto’s. He indicated-that the probability of rehabilitating Pizzu-to would not be high, and that in a prison environment Pizzuto would to some extent be a victimizer and to some extent a victim.

On cross-examination Emery characterized Pizzuto as aggressive, impulsive, manipulative and as having little ability to tolerate ambiguity. When recalled by the state, Emery reiterated that Pizzuto will remain dangerous, violent, and manipulative in prison, no matter what kind of treatment he receives. After sentencing, Pizzuto was seen by Dr. Michael Koerner, an epilepsy specialist, on September 9, 1987.

Counsel advised the court in a December 1987 hearing that Koerner had concluded that Pizzuto might have a temporal lobe seizure disorder, but they did not offer his report containing examination results and diagnosis at post-conviction hearings. (Koerner did file an affidavit April 11, 1988 indicating that it is reasonable to make a working diagnosis of epilepsy, that Pizzuto’s most recent EEG done when Koerner examined him was normal, that he has a family history of seizures, that his epilepsy can be fairly well controlled on modest amounts of medication, and that the fact that Pizzuto has done well for prolonged periods of time while not on medication is not contradictory because patients with genuine epilepsy may occasionally demonstrate a .type of seizure pattern similar to Pizzuto’s.) In February 1987, Pizzuto filed an amended motion for post-conviction relief on the basis that he may have been suffering from a temporal lobe seizure disorder and an organic brain syndrome which was not detected prior to trial or sentencing.

He submitted a report from James R. Merikangas, M.D., a neurologist and psychiatrist, dated April 1, 1988. Merikangas noted Pizzuto’s history of head injury, his history of epilepsy diagnosis, the fact that Dr. Werner maintained Pizzuto on seizure medication, and Pizzuto’s history of drug abuse. He suggests that Pizzuto is a brain damaged individual of which epilepsy is one of the symptoms, - and that as a result of brain injuries suffered when Pizzuto was 2and 14 years old his brain is defective and his cognition and ability to control his impulses are not those of a “normal” person.

The state submitted an affidavit from Dr. Werner, dated March 8, 1987. In it Werner opined that the probability that Pizzuto was suffering from temporal lobe organic disorder was exceedingly low given the results of her October 1985 examinations and testing. She also explained that violence associated with epilepsy is not goal directed, but stereotyped, simple, un-sustained, unplanned, and never part of a consecutive series of complex acts or in response to provocation prior to the seizure or premeditated.

In her opinion, Piz-zuto’s episodes were most consistent with pseudo, or pretended, seizures, and no further studies were needed at the time she examined him in October 1985. Dr. Emery also filed an affidavit February 6, 1987, in which he averred that his examination of Pizzuto prior to trial did not include neurological testing or consultation with a neurological psychologist, which might better detect evidence of organic brain damage. He suggested that Dr. Craig W. Beaver, a neuropsychologist, could undertake such an examination.

Judge Reinhardt held an evidentiary hearing April 7, 1988 at which Pizzuto testified. He denied the petition for post conviction relief April 15, finding that before trial, at Pizzuto’s request, he was examined by Dr. Greenwood, a general practitioner; Dr. Werner, a medical doctor specializing in neurology; Dr. White, a psychiatrist; and Dr. Emery, a psychologist, and that after trial but prior to sentencing, Pizzuto’s request by letter dated April 14, 1986 to hire Dr. Emery for a further examination for the purpose of testifying at the sentencing hearing was granted.

Relying on Werner’s affidavit, Judge Reinhardt also found that Pizzuto was not suffering from a temporal lobe organic disorder at any material time, but that even if he were, such a disorder could not account for, or have any bearing upon, the Herndon murders which the evidence demonstrates were premeditated, planned out, and part of a consecutive series of complex acts. Finally, Pizzuto was evaluated by Dr. Beaver for purposes of his federal habeas proceeding. Beaver gave Pizzuto a comprehensive neuropsychometric examination February 12, 1996.

His report notes that the April 1987 affidavit of Pizzuto’s mother recounts brain injuries at 2r% and 14, and that Pizzuto’s medical records dating back to 1990 recount multiple occasions in which Pizzuto reported or was observed having seizure-like behavior.

Pizzuto told Beaver that when he experiences seizures, he loses control and does not recall exactly what occurs; also, that “[h]e understands when he does have seizures, he can become very aggressive and violent towards others, but, again, indicates that he has little recall of those events when he has the actual seizures.” According to Beaver, neuropsy-chometric testing showed evidence of “significant neurocognitive deficits that would be consistent with’ a prior history of brain injury and/or seizure disorder.” Further, it indicated that Pizzuto has difficulty with impulse control and sustained attention in activities, as well as difficulty with decision-making in more demanding or unfamiliar circumstances.

Beaver notes that when the murders occurred, Pizzuto indicated that he was not taking anti-seizure medication and had been heavily involved .in polysubstance abuse. “This certainly would have affected his ability to make appropriate decisions and to effectively control his behavior in a highly charged and emotional circumstance.” Beaver also describes Pizzuto as demonstrating a strong tendency to overstate his accomplishments, being easily influenced by others “in a highly emotionally charged situation” not to show weakness, having a need for attention, and being rather passive dependent.

Beaver agrees that from Pizzuto’s history and records, he presents a “significant threat to others if he were again placed in an unstructured environment outside of the correctional system.” However, given Pizzuto’s age and conduct in prison, Beaver opines that Pizzuto does not pose a high risk to others within the structure of a correctional facility and can function safely there if he continues on medication. ii Although Dr. Werner was not strictly speaking an independent expert, she did perform some of the functions that Pizzuto would have received from an independent expert. The same is true of Dr. Koerner.

Werner reported on Pizzuto’s temporal lobe origin seizures. Based in part on what she said, defense counsel sought and obtained the appointment of experts to consider whether Pizzuto was fit to stand trial. But there is nothing to show that counsel were aware, or should have been aware, of the existence of — or the need for — neuropsychological testing, because neither Dr. Werner, Dr. White, nor Dr. Emery made any mention of it. Indeed, it was Werner’s opinion that Pizzuto’s reported seizures were pseudo, or pretended, and that no further studies were needed.

Before sentencing, counsel apparently asked Judge Reinhardt for permission to hire Emery for the purpose of testifying at the sentencing hearing. The state district court’s Findings of Fact, Conclusions of Law and Order on the amended petition for post-conviction relief refer to an April 14, 1986 letter from defense counsel to this effect.

Although the letter itself is not in the record, and Pizzuto now faults trial counsel for having failed to request an independent expert, his counsel represented to the Idaho Supreme Court in their brief in support of a petition for rehearing that an independent defense expert was requested both pre-trial and pre-sentenc-ing. There is no indication otherwise from trial counsel. Accordingly, we lack any basis for supposing that a request for an independent expert was not made, although it obviously was not granted for sentencing. Emery was reappointed, but he was neutral — -not independent.

This means that his report went directly to Judge Reinhardt and to the prosecutor as well as to defense counsel. Pizzuto relies on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and Smith v. McCormick, 914 F.2d 1153 (9th Cir.1990), for the proposition that an indigent capital defendant has a right to assistance of an independent psychiatric expert who does not report to the court and the prosecutor.

In Ake, the Court recognized an indigent defendant’s right to one independent expert when the state makes mental condition relevant to culpability and punishment, and to the testimony and assistance of a psychiatrist when the state presents psychiatric evidence of future dangerousness in a capital sentencing proceeding. Ake, 470 U.S. at 83-85, 105 S.Ct. 1087. In Smith, we clarified that the Ake right is a right to an independent, not neutral, psychiatrist. Smith, 914 F.2d at 1157.

However, we need not decide whether Pizzuto could succeed on an Ake claim, because Pizzuto’s issue on this appeal is ineffective assistance of counsel, not, as in Smith, constitutional adequacy of the court’s response to a request for psychiatric testimony. He points to evidence in the federal district court that a competent defense attorney would have retained an independent expert in any case where the defendant’s mental state was at issue and his life was at stake; however, this evidence (an affidavit from Katheryn L.

Ross) does not purport to be based on a review of the record in this case or to express an opinion on the performance of defense counsel in this case. Pizzuto further cites counsels’ failure to provide Emory with prison records, and with the information needed to make a complete diagnosis. However, there is no basis for concluding that further information would have made any difference in the outcome. It is clear that Judge Reinhardt sentenced Pizzuto based on the planned, calculated and complex series of acts that he found Pizzuto committed in conjunction with the Herndon murders.

The judge found that whether or not Pizzuto had a seizure disorder, it would not account for, or have any bearing upon, the murders at Ruby Meadows. This is consistent with what Dr. Werner opined, and her opinion in this regard remains unchallenged. In sum, there is no evidence that Pizzuto was suffering from an actual seizure, even if he had a seizure disorder, when he went “hunting” for the Herndons, tied them up, took their possessions, bashed their heads, got help to bury them — and told his friends and his sister what he had done.

Thus, even had defense counsel had the benefit of an independent expert (such as Beaver or Merikangas) for sentencing, the outcome would not have been different. Pizzuto suggests two other respects in which he was prejudiced, but we are unpersuaded. First, he claims that Emery’s harmful conclusions were disastrous because thirteen of the aggravating factors found by the sentencing court are traceable to Emery’s testimony, e.g., that Pizzuto is manipulative, deceitful, impulsive, unmotivated to change behavior, aggressive, unable to tolerate ambiguity, antisocial, etc.

However, for reasons we have explained, each of these findings can be disregarded because none has anything to do with statutory aggravating circumstance (g)(2)— that at the time Pizzuto murdered Del Herndon, he also murdered Berta Hern-don — which Judge Reinhardt found that the mitigating circumstances did not outweigh. Second, Pizzuto maintains that he was prejudiced by Emery’s assessment of future dangerousness in that Beaver’s more thorough report provides positive mitigating evidence while Emery’s produced exclusively aggravating evidence upon which the trial court relied.

The district court found that the differences between them are inconsequential, and we agree. Beaver did not examine Pizzuto until eleven years after the murders and his affidavit speaks as of 1996. Accordingly, his opinion of dangerousness is qualified, and limited to “considering Mr.

Pizzuto’s age [40 in 1996] and in reviewing what I know at this point [in 1996] about his conduct while in the correctional facility, either in Michigan or Idaho.” In this context, Beaver does not believe that if Pizzu-to were to continue (as of 1996) within the structure of a correctional facility, he would pose a high risk to others; by the same token, if Pizzuto continues on medication, has structure, and remains abstinent from drugs or alcohol, he could function safely and adjust appropriately.

However, Beaver agrees with the concern expressed in the original sentencing that Pizzuto in fact would present a significant threat to others if he were placed in an unstructured environment outside of the correctional system. Emery’s views came from two examinations that were contemporaneous with trial and sentencing. Emery did not see evidence of remorse and believed at that time that Pizzuto was a dangerous and violent individual. In his opinion, Pizzuto was preoccupied with the “victim” world and only really knows violence.

Rehabilitation was not impossible, but “the odds are not real high.” “[I]n a highly structured situation where he was given supervision, constraint, structure, guidance, he could perform tasks.” Emery also testified that were things sufficiently structured and supervised, Pizzuto could work in prison. He predicted that Pizzuto would find a place within the prison hierarchy and to some extent would be a victimizer and to some extent a victim.

He wouldn’t rule out a religious conversion for someone like Pizzuto, which could change attitudes, or improvement from psychotherapy, or mellowing at the age of forty which, he explained, appears to be the best tonic for antisocial personalities. Emery also clearly attributed Pizzuto’s behavior, including the murders, to his childhood environment, a fact that Judge Reinhardt found to be mitigating. Although there are differences between the evaluations of Emery and Beaver, we do not believe there is a reasonable likelihood that the outcome would have changed if Beaver had testified at sentencing.

The prosecution could have called Emery to testify regardless. Pawlyk v. Wood, 248 F.3d 815, 824 (9th Cir.2001). Emery’s testimony supports one of the facts found in mitigation and reinforces the defense theory that Pizzuto’s abusive childhood was responsible for his adult behavior. To the extent that Emery’s testimony also strongly supports facts found in aggravation, those facts are not prejudicial because they do not relate to statutory aggravating circumstance (g)(2).

In any event, Beaver does not counter Emery’s testimony that Pizzuto’s personality traits were not going to change as a result of being in prison. At most, Beaver offers a somewhat more optimistic prognosis for Pizzuto’s risk of danger to others in prison than Emery, but Beaver also does not preclude the possibility of some risk even from his vantage point of examining Pizzuto at 40.

In these circumstances, and in light of all the other evidence about Pizzuto’s propensity for violence (including from his jailers), we cannot see how Beaver’s assessment would have added anything meaningful to the mitigation mix before Judge Reinhardt.

D Absence from Presentence Intervieiv Pizzuto argues that counsels’ failure to attend or exercise any control over the interviews by the Idaho presentence report writer, Annette Jones, who administered no Miranda warnings prior to the interviews, was ineffective and prejudicial because Jones testified that Pizzuto was manipulative and deceitful, minimized his guilt, and displayed no remorse. He also maintains that the state district court’s finding that Pizzuto has a propensity to commit murder was based on his confession to a Seattle murder which was elicited at the presentence interview.

Taking the last point first, we disagree that this could be the case because Judge Reinhardt struck any reference to the Seattle murder from the presentence report and explicitly stated in his ruling on Pizzuto’s petition for post-conviction relief that the murder charges in Washington were not considered in his findings on the death penalty. As we shall explain in

Part IV, it is now the law of this circuit that the Fifth and Sixth Amendments apply to a presentence interview in preparation for a capital sentencing hearing. Hoffman v. Arave, 236 F.3d 523, 538, 540 (9th Cir.2001). Nevertheless, we do not need to decide if Pizzu-to’s counsel were deficient in retrospect, because he suffered no prejudice. Essentially everything in Jones’s report or testimony was already before the court, or not relied upon.

Although Pizzuto did not testify at either phase (he did make a statement, not under oath, at sentencing), the statements Jones related that he made to her were largely exculpatory and in any event, comport with overwhelming evidence which existed anyway. For instance, she stated that Pizzuto admitted or claimed that he tried to rob Crawford and Roberts — but Crawford, Rice, Odom and Lene Odom had all testified about Pizzu-to’s participation in the plan to rob the fishermen. Further, there is no indication that Judge Reinhardt relied upon what Jones said Pizzuto said.

Pizzuto told Jones that he helped bury the bodies and divide the money because the others made him do it — but Odom, Rice and Lene Odom all testified that he participated in the burial and distribution of cash. Jones stated that Pizzuto admitted he robbed Bacon, dealt drugs, and accidentally shot a man in Washington — -but Bacon testified how Pizzuto robbed him, and Sgt. David Warrington testified to statements that Pizzuto made about killing John Jones in Washington on account of drugs. Also, there is no indication that Judge Reinhardt relied on Pizzuto’s statement, or his involvement in drugs.

Emery noted that Pizzuto had been fired from three jobs-— but his ex-wife testified that he could not hold onto a job. Although Pizzuto did not admit to the murders and declined to talk about anything directly related to them, Jones stated that he said he was making love to Lene Odom at the time of the murders- — -but there is no indication that Judge Reinhardt gave any weight to this statement or its apparent incredibility.

Emery stated that Pizzuto said it would have taken two people to tie up the Hern-dons unless you were good at it with one hand — but this is consistent with Pizzuto’s theory that Odom and Rice did it and to the extent the statement is inculpatory, Bacon testified to being tied up by Pizzuto, Pizzuto’s sister testified that Pizzuto admitted to tying up people, Blumbaum testified to Pizzuto’s admission about binding ankles together, and Odom testified that the Herndons were bound when he first saw them.

Jones stated her opinion that Pizzuto was manipulative, deceitful and un-remorseful — but so did Emery, Blumb-aum, Warrington, and Angelinna Pizzuto. In addition, there was testimony from Rice, Odom, Lene Odom, and his sister that Pizzuto bragged about the murders, and photographs taken with the Herndons’ disc camera were received into evidence that show Pizzuto posing for pictures of himself holding Delbert Herndon’s gun. Therefore, even without Jones’s report and testimony, there was ample basis for concluding that Pizzuto lacked remorse and none for finding the opposite in mitigation.

Finally, Pizzuto was not prejudiced because this evidence relates to other factors or circumstances, but not to statutory aggravating circumstance (g)(2), which the court found alone outweighed the mitigating evidence. E Using Prison Records Pizzuto contends that his trial counsel had a duty to use his Michigan prison record to demonstrate that he could be rehabilitated, had received good ratings for job performance, and had no history of violence while there.

While the prison record shows that Pizzuto had fair to excellent ratings in his job performance, it also indicates that he had numerous “major misconducts” for “Threatening Behavior,” “Unauthorized Occupation of a Cell,” “Insolence” (twice), “Fighting,” “Out of Place,” “Disobeying a Direct Order,” “Dangerous Contraband,” “Attempted] Escape,” and “Contraband.” These major misconducts did not occur only at the beginning of Pizzuto’s incarceration and taper off over time; rather, they took place over a six year period.

We cannot see how emphasizing this record would have helped Pizzuto; regardless, counsel presented the positive aspects of Pizzuto’s Michigan incarceration at sentencing by introducing the affidavit of Russell Clark, who supervised Pizzuto, to show that Pizzuto had been productive, interested in his work, and performed his duties well while working at a prison convenience store. Chenoweth also elicited from Emery on direct-examination that Clark’s affidavit, which expressed the view that Pizzuto “is a productive person while in a structured environment,” was “not contradictory” with his opinion.

Thus, counsels’ treatment of the Michigan record is a strategic decision that we will not second guess. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. F Cross-examining Jail Guards Pizzuto asserts that Chenoweth and Wayman should have cross-examined Blumbaum because they had records showing that he believed Odom was the least trustworthy of the three (Pizzuto, Rice, and Bill Odom), there was no evidence that Pizzuto had ever committed any of the acts that he told Blumbaum about, and other jailers believed Rice to be the most dangerous.

As damaging as Blumbaum’s testimony was, his report shows that it could have been worse. While Blumbaum believed that Odom was the “least trustworthy,” he also heard Pizzuto threaten to kill his sister Angelinna.

Blumbaum had reported that he personally had “no hope of [Pizzuto’s] ever becoming a non violent member of society, short of a pre-frontal lobotomy and castration, and that might not change him sufficiently.” Nor can we find where any of his jailers said that Rice was the most dangerous; Blumbaum and Officers Nida, Deter, Engstli, Mencer, and Squires all reported that Rice was cooperative, a good prisoner, remorseful, honest, or pleasant, and no one said he was violent or dangerous.

In light of reports indicating that Pizzuto had threatened to beat Nida’s “head in with a shampoo bottle,” had threatened to break Deter’s jaw, and had to be physically restrained from attacking Blumbaum, it would have been foolhardy for counsel not to let sleeping dogs lie.

G Calling Pizzuto’s Sister to Testify Pizzuto argues that his trial counsel rendered ineffective assistance by calling Angelinna Pizzuto to testify because her testimony was similar to that of her sister, Toni, and putting her on the stand exposed her to cross-examination that brought out how Pizzuto had bragged about committing robberies where he tied people up and shot a man. However, her testimony in mitigation was a good deal more powerful, and personal, than Toni’s, and only she had visited Pizzuto in prison.

Her testimony directly supports one of the mitigating circumstances found by the court— that “[s]ome members of the defendant’s family have expressed concern for his well being.” Set against this, the negative aspects brought out on cross-examination were already in the record. Two other witnesses at sentencing testified that Piz-zuto had shot someone else: Warrington testified that Pizzuto claimed to have acci-dently shot a man in Washington, and Roger Allen testified that Pizzuto claimed to have shot someone off his motorcycle.

In addition, Bacon ' testified to being robbed and tied to'a tree by Pizzuto, who called himself a highwayman, and Blumb-aum testified to what Pizzuto told him about torturing people by binding and beating their feet. Counsels’ decision was plainly strategic, and probably beneficial overall. Regardless, there is no possibility that Angelinna Pizzuto’s unfavorable testimony uniquely influenced Judge Reinhardt adversely at sentencing.

H Allowing Pizzuto to Question Witnesses Pizzuto argues that counsel has a duty to control the presentation of evidence to prevent prejudicial events such as allowing him to cross-examine his ex-wife. In his present view the questions were abrasive and suggested that he was more interested in raking up old quarrels than saving his life. Pizzuto correctly points out that there is no right to “hybrid” representation, United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir.1994), but does not explain how counsel could have stopped him from seeking permission from the trial court to ask questions himself.

Judge Reinhardt allowed him to do so, after advising Pizzuto that he should let counsel handle the entire examination. Even so, Pizzuto’s inquiries of his former wife were largely beside the point; inquiries he posed to his sisters, on the other hand, were helpful as they elicited specific instances of childhood abuse without subjecting Pizzuto himself to cross-examination.

I Closing Argument Pizzuto contends that counsels’ closing argument at sentencing was brief, failed to argue that the court could not find the aggravating circumstances alleged beyond a reasonable doubt, contained few specifics — especially about the culpability of Rice, Odom and Lene Odom — and had no overall theme. It was certainly brief. However, argument was to the same judge who presided over the trial and had heard closing argument there that extensively explored credibility and relative culpability.

Further, it is not appropriate to single out counsels’ oral presentation at the sentencing stage from other measures taken on his behalf. “Under the Cronic test, it is the totality of his efforts that we must examine, not just part of them in isolation.” Gerlaugh v. Stewart, 129 F.3d 1027, 1036 (9th Cir.1997) (no ineffective assistance where counsel failed to plead for leniency).

In addition to what was done and argued at trial, counsel challenged the Idaho procedure for capital sentencing, moved to strike portions of the presen-tence report, and presented percipient and psychological evidence about Pizzuto’s abusive childhood. Chenoweth’s argument made a plea for Pizzuto’s life that was not without elegance; he asked whether, regardless of the jury verdict, some doubt did not linger in the judge’s mind about the roles of the people in the event at Ruby Meadows; he invited Judge Reinhardt to consider whether there was something salvageable about Pizzuto in light of Dr.

Emery’s testimony that Pizzuto’s worst of all childhood experiences was responsible for his behavior as an adult; he called for forgiveness for that, and for Pizzuto’s suffering over the years; he noted the hope that Pizzuto’s aunt held for him; he pointed out that Pizzuto was a victim of the system, his parents, and himself; and he asked for mercy. Based on our review of all the proceedings, and given the state’s overwhelming evidence in aggravation together with the limited mitigating evidence available to the defense, we are confident that a longer or more detailed discourse would have made no difference.

J Failure to Prepare Pizzuto asserts that trial counsel generally failed to prepare for the sentencing hearing by failing to obtain a mitigation expert, an investigator, or an independent mental health expert, and by failing to attend or prepare Pizzuto for the pre-sentence interviews. Essentially the contention is that the choices of counsel who are so unprepared cannot be defended as “strategic” under Strickland. However, Pizzuto does not suggest what additional evidence would have been discovered with more preparation and investigation, or how it might have affected the outcome.

Pizzuto’s counsel were faced with evidence that Pizzuto committed brutal murders after binding his victims and torturing Delbert Herndon by making him drop his pants and crawl around the cabin, then bragging about what he did. Beyond this, Pizzuto had attempted to commit another robbery just prior to the Herndon murders, committed another robbery almost immediately thereafter, and shot a man in Washington. He admitted to other shootings and robberies. And all of this occurred only a year after he had been released from prison on a rape conviction.

A good deal of evidence in mitigation was developed from Pizzuto’s family and Dr. Emery. No doubt counsel could have done more; more is always possible. But we cannot see any reasonable probability that more in this case would have led to a different sentence.

Ill Pizzuto argues that counsel were ineffective on direct appeal to the Idaho Supreme Court because their “Statement of Facts” failed to highlight any of the facts which showed Rice and Odom to be incredible or any of the evidence which militated against the existence of aggravating circumstances or supported the inference that Pizzuto was less culpable than the state contended. Claims of ineffective assistance on appeal are also governed by the Strickland standard. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

While the Statement of Facts did not go into detail about inconsistencies or impeachment, it was accurate, consistent with the trial testimony, and sufficient to alert the court that Rice and the Odoms were actively involved in the crime. Further, it is obvious from its opinion that the Idaho Supreme Court thoroughly reviewed the record and understood all the facts. Pizzuto I, 810 P.2d at 686-88. Finally, on this appeal, Pizzuto does not suggest any issues that could have been raised on direct appeal, but were not, that would have provided grounds for reversal. Wildman v.

Johnson, 261 F.3d 832, 840 (9th Cir.2001). Consequently, he has not shown prejudice. IV Pizzuto submits that his death sentence must be vacated as the state district court improperly relied on statements obtained during Idaho and Michigan presentence interviews that were conducted without Miranda warnings or the assistance of counsel.

The Idaho report was prepared, by Annette Jones of the Idaho Division of Probation and Parole in connection with Pizzuto’s conviction for the Herndon murders; the Michigan report related to Pizzuto’s 1975 conviction for rape, and was prepared by Michael Berro of the Michigan Department of Corrections. Since the federal district court’s decision in these habeas proceedings, we held in Hoffman v. Arave, 236 F.3d 523 (9th Cir.2001), that the Fifth and Sixth Amendments apply to presentence interviews in capital cases.

Hoffman clearly controls with respect to Pizzuto’s Idaho interview unless, as the state argues, it was implicitly overruled by the subsequent decision of the United States Supreme Court in Penny v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). In Penny, statements from an uncounseled and non-Mir-andized psychiatric interview were admitted into evidence. As AEDPA applied to Penry’s petition, the question was whether the state court’s decision was contrary to or an unreasonable application of Supreme Court precedent. The relevant precedent was Estelle v.

Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), where the Court held that a criminal defendant who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence may not be compelled to respond to a psychiatrist if his statements can be used against him in a capital sentencing proceeding.

The Court concluded that there were substantial differences between Penry’s case and Estelle; that Estelle had never been extended beyond its particular facts; therefore, it was not objectively unreasonable for the Texas court to conclude that Penry was not entitled to relief on his Fifth Amendment claim! Unlike Penry, AEDPA does not govern Piz-zuto’s case. Thus, Penry is not squarely on point and does not overrule or undermine Hoffinan such' that we could ignore Hoffman’s precedential effect.

Accordingly, Pizzuto’s Fifth and Sixth Amendment rights were violated by use of uncounseled, non-Mirandized statements against him. However, for reasons we discussed in

Part II-D, admission of the Jones report and receipt of her testimony did not have a “substantial and injurious effect” on the sentence. Penry, 121 S.Ct. at 1919-20 (noting that error in using report would justify overturning sentence only if petitioner could establish that it was not harmless under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). Admission of the Michigan report presents a different issue, as it was prepared in 1975 in connection with a non-capital proceeding.

Routine, non-capital presentence interviews are not the type of situation in which Miranda warnings or counsel are required for purposes of the Fifth or Sixth Amendments. Baumann v. United States, 692 F.2d 565, 577 (9th Cir.1982). But we need not resolve whether Estelle or' Hoffman apply, or whether applying either would be Teague barred because the error, if any, was harmless.

Although Berro testified that Pizzuto threatened him on account of his being involved in Pizzuto’s sentence for rape, and that Pizzuto claimed to have Mafia connections, Blumbaum also testified that Pizzuto threatened to “take care of’ his jailers and their families, and Piz-zuto’s former wife testified that he had threatened to kill her, the judge, and Ber-ro for their roles in his Michigan incarceration.

Blumbaum further testified that Pizzuto told him he was related to the Mafia, and his ex-wife testified that Pizzu-to told her that he was “either the fourth or fifth generation to A1 Capone.” In short, there was overwhelming other evidence that Pizzuto had threatened harm and claimed a relationship with the Mafia, so if there were error in admitting the Michigan presentence report, it was unquestionably harmless.

V Pizzuto argues that the. trial court relied upon an unconstitutionally vague sentencing factor — that “the murder was especially heinous, atrocious or cruel, manifesting exceptional depravity,” Idaho Code § 19 — 2515(g)(5)—which the Idaho Supreme Court has not adequately' narrowed. However, we addressed a similar issue in Hoffman and concluded that any error was harmless. There, as here, the petitioner’s sentence was supported by other constitutional aggravating circumstances, and the trial court had determined that each aggravating circumstance, standing alone, outweighed the mitigating evidence.

Pizzuto contends that a resentencing is re-quired notwithstanding Hoffman, as he has challenged every statutory aggravating circumstance on the grounds that the aggravating factors were not supported by the evidence and that the mitigating evidence weighed against each aggravating circumstance omitted important mitigating evidence. We have already explained why we disagree. The evidence supporting statutory circumstance (g)(2) was overwhelming and no material mitigating evidence was left out.

VI Pizzuto contends that the proportionality review of his sentence violated due process and was not performed in good faith despite a statutory obligation to do so.

At the time of Pizzuto’s sentencing, Idaho Code § 19-2827(e)(3) required the Idaho Supreme Court to determine “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Pizzuto faults the court for reviewing a floating universe of capital cases, for focusing on those in which the death penalty has been imposed, and for incorrectly determining in which other cases the death penalty has been imposed and approved.

The criticism appears well taken, but Pizzuto has not shown that “the review was so inadequate that [he] was essentially deprived of any review.” Rupe v. Wood, 98 F.3d 1434, 1443 (9th Cir.1996). In Pizzuto I, the supreme court examined the proportionality of Pizzuto’s sentence by considering “(1) the nature of, and the motive for, the crime committed; (2) the heinous nature of the crime; and (3) the nature and character of the defendant to determine whether the sentence was proportionate and just.” Pizzuto I, 810 P.2d at 716.

The court compared Pizzuto’s crime to over thirty other first degree murder cases and found it similar and proportional to State v. Lankford, 113 Idaho 688, 747 P.2d 710 (1987), which affirmed the death penalty for a defendant who, with an accomplice beat two campers to death with such force that their skulls had to be reconstructed by an anthropologist. Thus, we cannot say that Pizzuto failed to get any review. This being so, there is no constitutional violation because “due process will not recognize a less egregious injury.” Rupe, 93 F.3d at 1443.

Nor does Pizzuto have a basis for claiming that the review was not in good faith, other than to say that the court does not always look at the same cases and all members of the court don’t always agree on which ones to consider. However, we do not review for errors of state law, Campbell v.

Blodgett, 997 F.2d 512, 522 (9th Cir.1992), cert. denied, 510 U.S. 1215, 114 S.Ct. 1337, 127 L.Ed.2d 685 (1994), and the constitution does not require us to look behind the Idaho Supreme Court’s conclusion that Pizzuto’s sentence was proportional to the sentences imposed .in cases similar to his so long as he was not deprived of any review at all. Walton v. Arizona, 497 U.S. 639, 656-57, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). Accordingly, we decline to construct a universe of cases or conduct a de novo comparison of Idaho cases with the facts of this case. Martinez-Villareal v.

Lewis, 80 F.3d 1301, 1308-09 (9th Cir.1996). Pizzuto also maintains that the Idaho Supreme Court engaged in inaccurate fact finding, further undermining confidence in its proportionality review, when it noted that “at the sentencing hearing the evidence included two outstanding warrants for the arrest of Pizzuto charging him with first degree murder -in connection with two murders in the state of Washington.” Pizzuto I, 810 P.2d at 712.

However, we do not read the court’s proportionality analysis as relying on these facts; rather, the supreme court mentioned the warrants in its discussion of whether there was sufficient evidence to support the statutory aggravating circumstance of propensity to commit murder, Idaho Code § 19-2515(g)(8). ■ Finally, Pizzuto contends that he was denied due process because one of the factors considered by the Idaho Supreme Court was “the heinous nature of the crime,” which, in his view, rests on an unconstitutionally vague definition because he believes that the statutory ag-gravator, “especially heinous, atrocious or cruel, manifesting exceptional depravity,” is unconstitutionally vague.

Even if'the statutory aggravating circumstance were unconstitutionally vague for purposes of adequately channeling a sentencer’s discretion (an issue we do not reach), it does not mean that considering how “heinous” the nature of a crime is somehow makes that criterion unconstitutionally vague for purposes of comparing the sentence imposed in one case with others.

VII Pizzuto asserts that the trial court’s reliance on his low intelligence, lack of education, and limited vocational skills; assertion of his right not to incriminate himself; and mental disorders produced by the abuse he suffered as a child as support for imposing the death penalty: violates the Eighth Amendment. Relying on Clemons v. Mississippi, 494 U.S. 738, 752, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), and Beam v. Paskett, 3 F.3d at 1311, he points out that when an invalid aggravating factor has been weighed in the balance, reweighing is required.

Further, he contends that the trial court failed to recognize that some of these circumstances should have been considered in mitigation. In his view, this makes the court’s ultimate determination unreliable. We need not decide whether these particular characteristics of Pizzuto make a “ ‘measurable contribution to acceptable goals of punishment,’ ” Beam, 3 F.3d at 1308 (quoting Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977)), because even assuming they do not, there is no basis for vacating Pizzuto’s sentence.

As we have explained, statutory aggravating circumstance (g)(2) alone suffices, and it is not supported by the offender characteristics about which Pizzuto complains. Cf. Beam, 3 F.3d at 1311 (reweighing required because improper aggravating evidence supported all of the aggravating circumstances found by the trial court). Nor must the writ be granted for the trial court to reweigh Pizzuto’s personal characteristics as mitigating circumstances against the statutory and non-statutory aggravating factors.

Pizzuto contends that his mental and emotional deficits, lack of education and skills, and experience of abuse as a child should have been considered as mitigating factors. There is no question that such evidence of background and character is relevant, Penry, 121 S.Ct. at 1920, but Judge Reinhardt did not refuse to consider these things. He specifically stated that he considered all relevant evidence in mitigation and aggravation. Having considered all the evidence, the judge was not obliged to find it mitigating; he was “free to assess how much weight to assign to such evidence.” Ortiz v.

Stewart, 149 F.3d 923, 943 (9th Cir.1998). VIII Pizzuto contends that he is entitled to an evidentiary hearing on-his claims of ineffective assistance of counsel at trial and sentencing, that he was denied an impartial judge, and that the trial judge improperly relied on undisclosed information at sentencing. The district court meticulously went through every one of Pizzuto’s claims.

To help it decide whether Pizzuto was entitled to an evidentiary hearing on any of the grounds in his petition, the court ordered him to make an offer of proof regarding extra-record evidence which he would seek to present through such a hearing. Pizzuto submitted substantive affidavits from Beaver, Ross, and himself.

Having considered them along with everything in the record, the court concluded that there is no reasonable probability that Judge Reinhardt, absent the alleged errors by defense counsel, would have found the balance of aggravating and mitigating circumstances did not warrant death; thus, Pizzuto failed to make a colorable claim warranting an evi-dentiary hearing.

It found that Pizzuto could not establish prejudice on his trial claims either, as there is not a reasonable probability a different outcome would have resulted had the jury heard evidence that Pizzuto suffered from a seizure or other psychological disorder. It held that Pizzu-to procedurally defaulted his claim of judicial bias, and failed to show either cause or prejudice to excuse it.

Finally, the district court held that neither discovery nor an evidentiary hearing was justified on the strength of Pizzuto’s unsupported and speculative assumptions that the sentencing judge relied on information that Pizzu-to didn’t know about. Prior to AEDPA, the rule was: “A habeas petitioner is entitled to an evidentiary hearing on a claim if ‘(1) the petitioner’s allegations, if proved, would entitle him to relief, and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts.’ ” Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir.1992).

No hearing is required if “there are no disputed facts and the claim presents a purely legal question.” Id. Williams, 52 F.3d at 1484. We have also recognized that “[i]n a capital case, a habe-as petitioner who asserts a colorable claim to relief, and who has never been given the opportunity to develop a factual record on that claim, is entitled to an evidentiary hearing in federal court.” Smith v. Stewart, 241 F.3d 1191, 1197-98 (9th Cir.2001) (quoting Siripongs v. Calderon, 35 F.3d 1308, 1310 (9th Cir.1994)).

However, this does not establish a per se rule requiring an evidentiary hearing; rather, a petitioner must establish that his allegation of ineffective assistance, if proven, would establish both deficient performance and prejudice. Babbitt v. Calderon, 151 F.3d 1170, 1177 (9th Cir.1998). Pizzuto had an evidentiary hearing in connection with his motion for post-conviction relief, but has not had one specifically with respect to his ineffective assistance claims.

Nevertheless, a more developed factual record is not necessary given Pizzuto’s offer of proof, evidence adduced in post-conviction proceedings, and the state trial court’s rulings in those proceedings. A With respect to sentencing, Pizzuto argues that his affidavits are unrefuted; the record shows counsel acted on insufficient information and offers no support for their choices being strategic; and he has demonstrated how the defects led to the death sentence.

We have already discussed why Pizzuto has not shown prejudice even fully crediting Beaver’s affidavit; Ross’s affidavit states general propositions about good lawyering that do not require an evidentia-ry hearing to explore. Beyond this, Pizzu-to points to no additional evidence that would be presented if an evidentiary hearing were held or how it would change the outcome at the sentencing hearing.

B With respect to the guilt phase, Pizzuto claims that his counsel only realized shortly before trial that Rice and the Odoms would be key witnesses against Pizzuto; that they made no effort to investigate Bacon; that the record does not show they tried to develop or obtain mitigating evidence about Pizzuto; that they failed to obtain assistance of an independent mental health expert or consult with anyone about whether any kind of mental defense was possible; and that nothing shows that they considered how Pizzuto might escape a conviction under Idaho’s accomplice liability law.

He submits that it is impossible to evaluate the impact of defense counsels’ deficiencies without an evidentiary hearing, noting, for example, that had they been more on top of things they might have pursued a negotiated resolution short of trial. It is true that trial counsel did consider Pizzuto’s trial an “everyday ordinary” trial until they received notice of the state’s intent to seek the death penalty. But Chenoweth was an experienced trial lawyer and “[i]t is well established that an ineffective assistance claim cannot be based solely on counsel’s inexperience” in capital cases. Ortiz v.

Stewart, 149 F.3d 923, 933 (9th Cir.1998). Pizzuto does not show how counsels’ preparation would have been different, or how different preparation would have changed the outcome of the trial. They had prior statements and transcripts of the guilty pleas of the Odoms and Rice, and Pizzuto suggests nothing more that more investigation would have produced. Ortiz, 149 F.3d at 933 (ineffective assistance claim lacks merit when petitioner fails to specify what further investigation would uncover); Ceja v.

Stewart, 97 F.3d 1246, 1255 (1996) (claim fails without explanation of what compelling evidence additional investigation would have turned up). Counsel had a viable theory of defense — that Rice and Odom did it, and framed Pizzuto — which counsel developed by evidence of the pair’s prior relationship, inconsistent statements, and prior criminal histories. We have discussed why Pizzuto was not prejudiced at sentencing by his counsels’ failure to obtain an independent expert who would have testified along the lines of Dr. Beaver’s affidavit.

For the same reasons, there is no reasonable probability that testimony as set out in his affidavit would have altered the jury’s verdict. In addition, there is nothing to show that counsel were aware (or should have been aware) prior to trial of the need for further investigation, testing or consultation based on what they had been told by Dr. Werner, Dr. White and Dr. Emery. See, e.g., Murtishaw v. Woodford, 255 F.3d 926, 945 (9th Cir.2001) (no ineffective assistance when nothing suggests experts requested information); Hendricks v. Calderon, 70 F.3d 1032, 1038 (9th Cir.1995).

Because Pizzuto points to nothing substantial on any score that further investigation or preparation would have produced, there is nothing to resolve and thus no reason for an evidentiary hearing. C Pizzuto relies on unrebutted affidavits from his mother, father and sister averring that, at the start of the trial, Judge Reinhardt told Mrs. Pizzuto “[y]our son is a murderer — get it through your head— we’re going to burn his ass” to argue that he should have an evidentiary hearing on his claims of judicial bias. Pizzuto asserts that one of his trial lawyers, Nick Chenow-eth, who also represented him at sent

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